Gerrymandering: Sotomayor asks the pertinent question

Partisan gerrymandering is and always has been a blot on the U.S. system of politics and government. Until now, the courts have decided that there is nothing they can do about it.

The case now before the Supreme Court arises from our neighbor, Wisconsin, which, after Republicans gained complete control of state government for the first time in a decennial redistricting year, drew a map of state legislative districts that enabled Republicans in the next election to convert 48.6 percent of the statewide vote for State Assembly candidates into 60 of the Assembly’s 99 seats.

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Veteran journalist Eric Black writes Eric Black Ink for MinnPost. His latest award is from the Society of Professional Journalists, which in May 2017 announced he'd won the national Sigma Delta Chi Award for online column writing.

Comments (20)

"[P]roduces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power." All well and good, but knowing who is in power is only the first tiny step towards accountability. Real accountability entails a meaningful opportunity to change who is in power.

If the result of an election is a foregone conclusion, why bother voting in the first place?

This case is case of one man one vote. The man is Anthony Kennedy, and his is the one vote in question.

Perhaps tellingly, the conservative justices grilled the plaintiffs and the justices just left of center grilled the defendants. Kennedy? He opened up the questioning, and grilled the defendants. All else is just noise.

Though Justice Sotomayor succeeded in what she was probably trying to do, namely, get a nonsensical response, I'm not seeing how that question is in any way PERTINENT. Even in the unlikely event that someone could provide a satisfactory answer, it would be completely irrelevant.

If you accept that the Constitution forbids the disenfranchisement of eligible voters, and that the Federal judiciary has a role in protecting this prohibition (two issues which have factored in previous Supreme Court decisions on the matter and remain under consideration), then even if partisan gerrymandering offers something positive, it would still need to be disallowed if it brought about the potential to disenfranchise anyone.

So, the "pertinent" question might be something more like,

"Since everyone agrees that the intent of gerrymandering is to create uneven conditions for future elections, what is the mechanism by which the conditions could ever be returned to even?"

The tempting answer to that question, "future elections," is obviously disallowed, revealing that gerrymandering is, in its intent and design, self-perpetuating, and, therefore, not correctable. The unacceptable absurdity of the practice is laid bare, without requiring a lawyer to trip all over his tongue (though I'd still love to hear someone try to answer that question).

I have no background on the issue before the court. I doubt many do. I am, however, familiar with a number of other constitutional issues and standards, many of which require some showing of a governmental interest and the importance of that interest. Sotomayor may have had that in mind when she asked the question, if only to establish for the record that the State of Wisconsin could cite no governmental interest in support of gerrymandering, extreme or otherwise, much less an important governmental interest.

While I have no idea what standard the court might impose on political gerrymandering, I strongly suspect it will do so. What limits it might impose is anyone's guess. Clearly, the self-perpetuating hijacking of a legislative majority is not an acceptable situation, regardless of the party in control.

As I understand it, Justice Ginsberg asked the pertinent question about the effects on voting patterns and the weight of votes.

And as I understand it, the plaintiffs in their argument did present several ways to avoid gerrymandering.

And once again, it seems, California has been the leader on this issue, championed by its former Republican governor Arnold Schwarzenegger. That progressive state took redistricting completely away from the legislature, and several other states have followed that example.

"[T]he [C]onstitution does not guarantee equal representation." Yes, it does. Read the Equal Protection Clause of the 14th Amendment, the basis for enshrining the idea of "one person, one vote." Justice Gorsuch pretended to have forgotten that, but his charade didn't go over well.

"The effects of a gerrymander fade over time, so there is great difficulty in proving any long-term effects." Justice Alito made that point during oral argument, but he was quoting (out of context) a study that used old data. The conclusion that he referenced was not based on any studies of more recent gerrymandering.

"In some ways, the science of quantifying gerrymandering is more difficult than rocket science, as we are dealing with people and people are inconsistent from election to election." Well, no. In the case before SCOTUS, we can look at the number of votes cast for Democrats, and compare it to the number of seats won by Republicans. While exact mathematical congruity cannot be expected, when there is a grossly disproportionate difference, partisan gerrymandering is the most logical inference. Occam's Razor comes in handy here.

“Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.”

To address your seats-votes question. I have written a paper on the Efficiency Gap and made a short video that speaks to proportional representation:

Veith v. Jubelirer was a plurality opinion, resting more on questions of justiciability and standing (the only argument that got five votes). The idea that partisan gerrymandering could rise to the level of a constitutional violation was addressed in the latter case of League of United Latin American Citizens v. Perry, 548 US 399 (2006). That case was another fractured opinion, but three justices said that particular case did not rise to the level of a constitutional violation, two argued that it did, and two expressly stating that they took no stand on the question.

I'm afraid I don't find your paper particularly persuasive. You are giving districts more weight and importance than individual voters.Districts are artificial creations, meant to facilitate representation. They are not ends in themselves.

In my calculations, I give constituents, not voters equal representation. District populations are designed to be equal in population. Treating voters as equal, as you would like, means that if twice as many voters show up in one district, that district has twice as much influence on the calculations. But they don't have twice as much influence because they only elected one representative. So, the districts (the constituents) should be treated as equal.

Are you saying that each voter, or each constituent, should have equal representation in the legislature?

Constituents are entitled to equal representation, and the equality should be based on population within each district. I don't dispute that.

I'm not sure what you mean by "if twice as many voters show up in one district, that district has twice as much influence on the calculations. But they don't have twice as much influence because they only elected one representative." I hope I'm not misunderstanding what you're saying, and I would welcome clarification. Are you looking at districts in isolation, and comparing them with each other? Or are they considered as a part of the overall population of the state?

We are kinda in the weeds here and I need a whiteboard with arrows and bubbles and waving hands, but as a summary:

From the mini-state example at the end of my paper... We have a state with only two districts...

R Candidate D Candidate
District 1: 2 8
District 2: 16 4

Adding up the votes, there are 12D votes and 18R votes.

Therefore, the state is 40%-60% Democrat-Republican.

But...

In District 1, the Democratic candidate won, 80% to 20%
In District 2, the Republican candidate won, 80% to 20%

According to this, the state is 50%-50% Democrat-Republican.

The 50-50 split more accurately represents the state. This is why a statewide vote count does not represent the populace as well as people may think. This is especially true when doing gerrymandering calculations.

What if we make it more complex, with three districts, two of which were won by Republicans (let's keep the other numbers the same, and say that in our new District 3, Republicans won 9 votes to 6). That means the vote totals in the state are roughly 42% Democratic. When the map is redrawn, the 18 Democratic votes are split evenly among the three districts. None of the districts has a Democratic majority, and the Democratic representation is 0. On the other hand, if the original districts were left as they were, the proportional representation of the parties is as close as it can be made under the circumstances.

If the Dems were split evenly throughout the state, 6 per district, they would still win the first district.
If Reps and Dems were split evenly, each district would give a 9-6 win for Reps in each district. When you make the total vote count equal in each district, using percentages or actual vote count gives the same answer.

I did not say anything about splitting things up, I am just saying that no matter how you split up the districts, using percentages gives an answer that best describes the state.

BTW, I have been asked for a more detailed video on the Efficiency Gap, so if you are interested,
it just got posted… It addresses some our conversation.

From the NewYorker's Jeffrey Toobin:
"....“Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)
In one cutting remark, Ginsburg summed up how Gorsuch’s patronizing lecture omitted some of the Court’s most important precedents, and Smith gratefully followed up on it: “That’s what Reynolds v. Sims and Baker v. Carr did, and a number of other cases that have followed along since.” In these cases from the early nineteen-sixties, the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections."

There is really not much that can said after that. Although not the perfect answer a voting commission will take out the edge created by denying one person one vote which clearly gerrymandering determined by those in powers does. It is a specious argument even to suggested that the effects dwindle over time. The fact of the matter the effects do exist. The Wisconsin example brings that clearly to light. I am not sure quite how a commission is created in these times where even the act of going to the bathroom has been politized. But it is one step away from nonsense of endless fighting to the death to get their way.